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July 2005
Interesting article on Lopez and Commerce Clause
Interesting article by Prof. Glenn Reynolds and Brannon Denning....
"Like Akira Kurosawa's 1950 film Rashomon, in which four witnesses to a brutal crime relate four different accounts of the same event, in the five years since Lopez was decided, lower courts have interpreted Lopez so differently that one wonders whether they all read the same opinion. Of course they all did, which raises interesting questions about the majority opinion itself, and the nature of contemporary Supreme Court decisionmaking generally, which is discussed below. "
(Prof. Denning has done similar analyses of US v. Miller, and how lower courts resisted and subverted its ruling). {in response to comment, Denning's article can be found here.
BTW, blogging will be light for the next week, as I'm off doing booksignings in PA. First one is Wednesday, 7 PM at the Borders in Wynnewood PA, a Philie suburb. Back on line next Tuesday for sure.
Permalink · Commerce Clause · Comments (2)
Request for info on ATF seizure/destruction of full autos
Eric Larson is helping to collect some legislative info supporting H.R. 2088, the "Veterans' Heritage Firearms Act of 2005." He would be interested in any reports (particularly those with hard copy documentation) of ATF seizure and destruction of rare or historical full autos.
His mailing address is
Eric M. Larson
P.O. Box 5497
Takoma Park, Maryland 20913
and his email is
larsone - at- starpower.net
Permalink · BATFE · Comments (0)
Knife control in Scotland
From Times Online, a story about knife control in Scotland.
"Calum Duke, a schoolboy from Glasgow working undercover, was able to buy a potentially lethal haul of blades including kitchen knives, daggers, dirks, hunting knives, craft knives and even an axe....
The findings follow a warning by police this week that the west of Scotland is in the grip of a “knife pandemic”. The number of murders involving a blade in the Strathclyde area is three times higher than
anywhere else in Britain.
Every week for the past six months, there have been 25 serious assaults with a knife and 13 of the 30 murders in the west of Scotland this year were committed with a blade.
The level of knife crime in Glasgow is similar to that in the most violent eastern European cities. The worst offenders are male and between 15 and 25.....
The Bhs store in Glasgow’s St Enoch Centre had signs on display warning: “It is an offence to sell knives to people under 16 years of age”, but Duke was still able to buy a set of six steak knives without being challenged.
Similar warning notices were on display at the Co-op store in the Paisley Centre, where he was able to buy a cooking knife with a six-inch blade."
Judge Roberts and the Commerce Clause
While the Supreme Court nominee has never said anything regarding the Second Amendment, there seems to be some hope that he views the Congressional power over interstate commerce as less than unlimited. In he dissented from a denial of rehearing en banc, arguing that there was a Commerce Clause problem with applying the Endangered Species Act to forbid a "taking" of an endangered toad within a State. (It was an "incidental take," where a developer wanted to build on a parcel and the indirect effect of that might be death of some of the toads).
(Roberts also shows a bit of wit, referring to "regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California")
Continue reading "Judge Roberts and the Commerce Clause"
Is any Supreme Court nomination invalid?
James Lindgren, on the Volokh Conspiracy, reports an interesting point.
By law, there are nine Justices on the Supreme Court, and the President can nominate, and the Senate confirm, a successor when a Justice resigns or dies.
But O'Connor's resignation said it would become effective when her successor was confirmed. So her resignation won't take effect until the successor is confirmed. But until it takes effect, there is no opening, and no one can be nominated or confirmed. Catch-22, the best catch there is!
In practice, of course, the problem will be ignored (as it apparently was the last time it arose, when CJ Burger resigned the day his successor, CJ Rehnquist, was sworn in).
Permalink · Supreme Court caselaw
Sheriffs deny signing Brady Campaign letter, but Brady continues to use their names
The American Chronicle has some interesting investigative reporting. Brady Campaign submitted a letter during Congressional hearings, and posted it to their website, which was supposedly signed by law enforcement officials. The author of the article tracked down a number of LEOS from his state whose names were on the letter, and all denied signing or approving it, and demanded that Brady take their names off it. The Brady Campaign agreed -- but weeks later, their names are still on the letter, and in fact have been attached to another letter endorsing a different Brady-backed bill.
Permalink · contemporary issues
Parker case -- challenge to DC law
In the Parker appeal, here are a couple of filings (pdf format) fresh from the Plaintiffs' counsel Alan Gura. The first is the Defendant's motion, in the DC Circuit, for summary affirmance (arguing that standing is foreclosed by the Circuit's ruling in Seegers, the other challenge to the law).
The second is Plaintiffs' response, which points out that they developed a more extensive record than did the Seegers plaintiffs. It's humorous, by the way, how DC officials start in asserting they WILL enforce the law and then, after figuring out that standing to sue can be proven if a realistic fear of prosecution exists, begin hedging with they would "normally" enforce the law, etc.
Permalink · contemporary issues
Totally off topic, but
A fellow I've been in email correspondence with, a Turkish Moslem, has established an interesting blog, The White Path. (Title is taken from what his last name means in Turkish).
Very interesting insights, which gives you a view as to how things look from over there. It's not always what you'd expect.
For example, some Turks are rather anti-Bush because they're suspicious he may lean too far toward Islamic fundamentalism (and Turkey is *strongly* secular in its politics). After all, if he's a devout, perhaps fundamentalist, Christian, why wouldn't he naturally prefer devout, fundamentalist Moslems, to secular ones?
He also points out that other Turks lean toward anti-Americanism not because of politics, Iraq, military matters, but because they see the traditional, family-oriented, value-holding America (which they admired -- they LOVED "Little House on the Prairie) collapsing into a valueless, materialistic, atheistic morass. (He pointed out that the 9/11 terrorists did not hit the Vatican or other religious symbol, and middle eastern terrorists rarely target synogogues. Instead the first hit the WTC, a symbol of modern materialism, and the latter prefer to hit Israeli nightclubs and bars).
Proper use of firearms in Britain
According to the London paper The Times Online, onlookers to the recent shooting of the fleeing bomber in London describe the situation as:
"He sort of tripped but they were hotly pursuing him and couldn’t have been more than two or three feet behind him at this time He half-tripped, was half-pushed to the floor.
"The policeman nearest to me had the black automatic pistol in his left hand, he held it down to the guy and unloaded five shots into him."
The British (for all their gun law failings) have long had a more realistic response to terror than we do. When I was with Interior in the late 80s, another attorney attended a terrorism response session (yes, they had concerns back then) where there was a presentation on the British storming the Iranian Embassy, which had been taken over by hostage-takers. He said the SAS had been given photos of many of the hostage takers, and told they were divided into three classes. One, I assume needed for interogation, were to be taken alive if at all possible. A second group could be taken alive or not. A third group was not to be taken alive, period (I assume because future hostages might be taken in order to free them).
The hostage takers had taken a British policeman. Since they supposedly aren't armed, they didn't search him. Well, British cops don't always follow that rule, and he had a hidden gun. As the SAS stormed the building, he grabbed a hostage taker and put the gun to his head. The SAS burst in, and he shouted he had the fellow. The SAS ordered him away from him. He stepped away, and they shot the hostage taker dead. He had been on the third list.
I'd assume there was no such list involved here, but the concern would have been whether the fellow had a bomb belt on, and a warning shot to the head was the best solution. It doesn't sound like there was a detailed investigation -- but with a city under repeated terrorist attack, a fellow who attracts police attention, flees, and rushes into the subways which have been a target in the preceding days and indeed hours, does assume a certain risk.
Relocation of 2007 NRA Convention
Matthew Holmes has a great posting at Chronwatch, relating to the NRA cancelling Columbus as the site for its 2007 convention. (The city fathers appear to be dismayed that NRA declined to hold its annual meeting in a city that had just passed an assault rifle ban).
Permalink · NRA · Comments (0)
Gun Mfrs seek cert. on DC decision
The Insurance Journal reports that gun manufacturers have filed for cert. with the Supreme Court, from the DC Circuit ruling upholding the DC ordinance that imposes strict civil liability for making an "assault weapon" that winds up (by any means) in DC and is used to harm a resident. My previous post on the case is here.
A modest proposal: if a law such as this (a mfr is liable if his product reaches this state (in any way, including by theft and interstate transport), strictly liable for any misuse (even tho the original retail sale in a different state was lawful), then perhaps my own Arizona could enact a law that would enrich its citizens at the expense of out-of-state auto manufacturers. Just enact a law imposing strict liability on the manufacturer of a vehicle that is misused in way that causes an injury. This should be appealing to the Legislature, since there are no in-state manufacturers, and it would drain a few hundred million a year out of Detroit and into Tucson and Phoenix.
Permalink · Gun manufacturer liability · Comments (1)
David Kopel on federal setencing guidelines proposal
Over at the Volokh Conspiracy, David Kopel has posted a link to his paper on pending legislation to change the Federal sentencing guidelines. Very interesting material. I thought the original sentencing guidelines were a pile of Draconian trash, and Dave makes a strong argument that the replacement legislation is considerably worse.
Back when I was at Interior, the law enforcement types were lobbying the commission to get sentences for the offenses they went after (mostly rather minor) increased. The motivation was NOT a belief that more punishment was appropriate. Rather, it was an understanding that federal prosecutors used the number of guideline points to assess how serious a case was -- if the offense added up to twenty points, a busy US Atty was more likely to take it than if they added up to ten or twelve. I know of one case where a similar move was made through Congress, and the LEs tesified quite frankly that they wanted certain things made felonies because US Attorneys wouldn't take them as misdemeanors, they just sounded so insignificant. Nothing like justice!
Permalink · contemporary issues · Comments (0)
David Kopel on federal setencing guidelines proposal
Over at the Volokh Conspiracy, David Kopel has posted a link to his paper on pending legislation to change the Federal sentencing guidelines. Very interesting material. I thought the original sentencing guidelines were a pile of Draconian trash, and Dave makes a strong argument that the replacement legislation is considerably worse.
Back when I was at Interior, the law enforcement types were lobbying the commission to get sentences for the offenses they went after (mostly rather minor) increased. The motivation was NOT a belief that more punishment was appropriate. Rather, it was an understanding that federal prosecutors used the number of guideline points to assess how serious a case was -- if the offense added up to twenty points, a busy US Atty was more likely to take it than if they added up to ten or twelve. I know of one case where a similar move was made through Congress, and the LEs tesified quite frankly that they wanted certain things made felonies because US Attorneys wouldn't take them as misdemeanors, they just sounded so insignificant. Nothing like justice!
Permalink · contemporary issues · Comments (0)
offline for a few days
Off to VA for a few booksignings, and probably out of internet touch -- will be back Wednsday!
Permalink · Personal · Comments (0)
Parker challenge to DC gun law
The Parker case survived challenges to standing (while Seegers did not), and plaintiffs' counsel Bob Levy and Alan Gura have moved for a briefing schedule. Their motion, which discusses the standing issue, is available in .pdf here
Permalink · contemporary issues · Comments (1)
Clayton Cramer on gun mfr liability bill
Clayton Cramer has a take on the present draft of the gun manufacturer's liability bill. I'd tend to read it differently. The bill (if link doesn't work, go here and search for HR 800) essentially prohibits civil suits against dealers and manufacturers, with several exceptions. A person can file the following suits:
(i) an action brought against a transfer or convicted of an offense under section 924(h) of title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;
(ii) an action brought against a seller for negligent entrustment or negligence per se;
(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, if the violation was a proximate cause of the harm for which relief is sought, including-- (knowingly making false record, etc.)
Now, (i) covers conviction for violating 18 USC 924(h), which forbids knowing transfer of a firearm to a person who intends to use it in a violent crime or a drug transaction.
(ii) covers negligent entrustment (separately defined as where the seller knew or should have known that the buyer would use the gun in a hazardous way) or negligence per se. The latter is the idea that violating certain types of laws proves negligence automatically. It mostly arose out of traffic laws -- if a person runs a red light or speeds, that itself proves civil negligence. (I'm not sure, but suspect that DUI may not be negligence per se -- after all, a person may be intoxicated but be involved in an accident the other person caused, whereas if one person had the red light and the other the green and an accident occurs, the one who had the red light is clearly responsible for it). In the gun context, as I remember, negligence per se is pretty much found only where a gun was knowingly sold to a prohibited possessor.
(iii) covers knowing violation of federal or state law, if the violation proximately caused the harm. Proximate cause is an ambiguous concept that there must be more than simple "but for" cause, there has to be some degree of direct cause. A lot of gun liability cases have failed on that ground. Seller sells gun, user commits crime with it. Yes, *maybe* if he hadn't got the gun he wouldn't have committed the crime, but the user's decision to commit crime usually makes the causation insufficiently direct, the decision is an "intervening cause."
As I see it, the exceptions are pretty broad. Enough so that all that is ruled out is a suit where no criminal law was broken, and the seller had no reason to believe that the buy would misuse the gun. Given the breadth of regulations in this area, that's pretty narrow. But it would bar suits for, oh, "you make guns, one was used in crime, so I sue," or "the dealer made a completely legal sale, but we feel it was negligent, even tho there was no way to know the purchaser would commit a crime," and of course the wierd nuisance theory suits.
(there are also exemptions for warranty actions, and product liability suits other than ones based on the purchaser's criminal use).
I suspect the bill was redrafted in a hurry, because it has at least one big quirk. The definitions start out by defining "engaged in the business" of mfr, dealer, etc., taking the definitions straight from the GCA. But then the only time that term is used is in the definitions of mfr, dealer, etc. where it says these are folks engaged in the business and licensed to do so. A better approach would have been to leave out all reference to engaged in the business and simply say an mfr is one licensed to be an mfr, etc.. Not only does adding in the term add useless wording, it also leaves at least a tiny loophole, an argument that this fellow may have a dealer's license but he didn't do enough business to be engaged in the business, and hence is not protected.
Permalink · Gun manufacturer liability · Comments (0)
Chief Justice in hospital
CJ Rehnquist has been hospitalized with a fever. This can be very bad news, as he's 80 and may still have the thyroid cancer -- cancer can knock back the immune system, and so can the chemo used to treat it, and at some point the immune system gets so low that even "harmless" bugs like the ones in the intestines and bladder can cause fatal infection. (If you want to know how I learned this stuff, check out the memorial webpage for my former wife).
Which means we may be looking at two nominations. Of the existing Court, I'd have counted the CJ as probably pro-2d Amendment, based on his opinion in Verdugo-whatever, where the opinion went out of the way to cite the Amendment as a right of individuals (the case had nothing to do with arms, and the reference was hardly core to its logic, so I think it was inserted to lay the groundwork for a possible later 2nd Amendment case). O'Connor -- no written positions, ranching background might mean sympathy, but her opinions of late make her quite unpredictable. So we lose one likely vote and one unknown. One good pro-2nd appointment merely leaves us where we were, it'd take two to improve the situation. (With Scalia and Thomas being pro-Amendment, that'd give us four good ones and five unknowns. (The late Roy Lucas once told me he'd watched a Supreme Ct argument dealing with guns in some way, and he thought that Souter's body language suggested he had some deeply-felt dislike of guns).
I hope firearm groups are doing serious, serious thinking and lobbying on this. You can bet that other GOP-supporting groups (right to life, etc.) are making clear that they helped elect the present administration and expect a few favors now. Anyone who doesn't speak up now is apt to be forgotten.
Permalink · contemporary issues · Comments (1)
Ban on imports
Have heard a report (no link yet) that BATFE has announced a ban on importation of "nonsporting" receivers and barrels, whatever those might be.
A key problem with the statute (and one which ought to be addressed by amendment) is that it permits importation bans of firearms not generally recognized as suitable for sporting purposes. As far as "sporting purposes" goes, the Second Amendment isn't about duck hunting, as they say. An equally great problem is the "generally recognized" portion. It allows a ban based on the argument that "maybe it is suitable for sporting purposes, but it's isn't "generally recognized" as so suited." That's how the initial import ban was justified -- review a bunch of gun magazines, and argue that there aren't enough references to a gun, or a type of gun, being useful for sport: whether it is or isn't suitable is no longer the question, and the agency can decide just how many mentions it takes to make something "generally recognized."
Permalink · contemporary issues · Comments (8)
How typical....
The Brady Campaign is hosting a fundraising dinner ... at the French Embassy
Permalink · contemporary issues · Comments (0)
Kopel draft paper on arms vs. genocide
From davekopel.com: a draft paper by Dave, Paul Gallant, and Joanne D. Eisen, entitled "Is Resisting Genocide A Human Right?" (pdf file). It looks to be the most comprehensive work on the subject yet.
Permalink · arms vs. genocide · Comments (0)
Kates & Polsby on genocide
Instapundit reminds of Don Kates & Dan Polsby's excellent piece, "Of Genocide and Gun Control" in the Washington Univ. Law Quarterly. The first two sentences sum it up well: "This essay seeks to reclaim a serious argument from the lunatic fringe. We argue a connection exists between the restrictiveness of a country's civilian weapons policy and its liability to commit genocide[1] upon its own people. "
Permalink · arms vs. genocide · Comments (2)
Interesting challenge to NY gunshow law
A tip from Dan Gifford. According to the Rochester Democrat & Chronicle, attorneys challenging a new NY gun show law have raised an unusual point. The law makes it a crime to have a "gun show" without capability for running criminal background checks, and defines "gun show" as any gathering of gun enthusiasts. That would include shooting club meetings, their fundraising dinners, etc., etc.
Permalink · contemporary issues · Comments (1)
Italy broadens self defense
From Dave Kopel, over at the Volokh Conspiracy -- the Italian parliament has voted in their version of a national "make my day law." Under previous law, forced used in defense had to be "proportional" to the criminal attack -- which sounds reasonable, until you consider it meant that a woman facing a strong-arm rape broke the law if she defended with a knife or gun, since she was "escalating" the struggle from bare hands to weaponry.
Permalink · non-US · Comments (0)
Interesting webpage on homicide
Just was alerted (hat tip to Budd Schroeder) to a most interesting webpage on homicide rates. (It's not gun law driven, as it were -- apparently compiled by a researcher in the concept of life extension & cryonics, who figured that since neither does much good if a person is murdered, homicide was worth some detailed study.
The webpage breaks down homicide rates on an international, state, and city level, trends over time, especially hazardous occupations (taxicab driving is worst) and locations (liquor stores), etc. Of some interest to us:
The US doesn't make the top ten for homicide.
Among the ten safest countries are Switzerland, Israel, and Finland, where guns are common.
Worst city for murder is DC (rate 45.8). Philadelphia, which has had a push for gun control with claims the state controls are too loose, is no. 6 with under half DC's rate (19.0). Dallas is no. 10.
Ten safest cities are led by Honolulu (lots of gun control, followed by El Paso (very little gun control).
61% of US homicides are male kills male. Only 2.4% are female kills female.
Half or more of homcide victims were intoxicated at the time. Intoxication rates were highest in murder by drowning (presumably because that's not easy with a resisting victim).
Permalink · contemporary issues · Comments (0)
Are all federal shooting ranges open to the public, by law?
Alan Korwin again comes up with a fascinating legal question, in PhoenixNews.com....
Under 10 USC 4309, it appears that all Federally-owned shooting ranges are open to the public (under such regulations as may be applied by the agency). From the face of the statute, it appears that even military ranges must be open (although the military has first dibs on their use). And further that ONLY military ranges may charge fees.
I've verified that the statute is on the books and is as he says, haven't had a chance to look up its history and context yet.
Permalink · contemporary issues · Comments (11)
House votes against part of DC gun ban
The House just passed a restriction on enforcement (not a true repeal) of part of the DC gun ban. IF the WashPo report is correct, it would forbid use of appropriated funds to enforce the requirement that firearms (in this case mostly registered rifles and shotguns, since new registrations of handguns have been forbidden for decades) be kept disassembled or trigger locked while in the home.
I suspect this is more symbolic than anything else. (1) I rather doubt that section of the law is enforced or in most cases enforcable. Back in the 80s I remember Mayor Marion Barry being asked about it during a congressional hearing and essentially responding that, well, there are sections of the law that nobody obeys. (2) While a federal agency has nothing but appropriated funds, so forbidding it to use them for a purpose means there is no way to carry out that purpose, DC has tax and other income. Of course, the bill might be drafted to get around that, i.e., to prohibit use of any funds for that purpose.
Permalink · contemporary issues · Comments (0)
Rehearing denied in DC challenge (Seegers)
Triggerfinger reports that rehearing has been denied in Seegers. I have an interesting proposal for dealing with the standing issue that is at the heart of that (and many other gun cases).
The DC Circuit ruled that the plaintiffs lacked "standing." That's a jurisdictional requirement arising largely out of the Constitution's provisio that Federal cases must involve a "case and controversy," a real, practical, legal dispute. If a person is not being prosecuted, there are some serious limitations on whether he/she can take the offensive and sue to challenge a law (esp. when the always-special First Amendment is not involved). The standing barrier is a major threat to test cases, which is why when I taught bringing the Federal test case as part of a CLE course, I started with it, and stated it had a higher potential of killing your case than any other defense.
A thought I just had. The challenge here is to DC's refusal to issue handgun permits, and requirement that any long guns be disassembled or trigger locked. Plaintiffs are challenging because it prevents them from defending themselves.
Now... in environmental cases the Supreme Court has recognized "aesthetic standing." Sierra Club v. Morton I believe was the first case, more recently the American Cetasian or however you spell whales in a fancy mode. In the latter the harm was that the govt action allegedly might reduce whale populations, which would impair plaintiffs' enjoyment of whale watching. That string of cases establishes that emotional harm (down to possible loss of seeing something you like to see) is sufficient "harm in fact" to confer standing.
If that is the case, then is there not an argument that deprivation of a feeling of security is "harm in fact," and thus laws that cause that deprivation are actionable? The desire to feel safe from deadly assault is surely stronger than the desire to see open landscape or watch whales.
Further thought: a complication.... in the enviro cases the alleged emotional harm flows directly from the government action. In a firearms case there is an intervening event... the law causes plaintiff to obey it, which causes the distress. Courts might tend to say that that intervening cause puts you back in the box.